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International  Copyright 


CONSIDERED    IN    SOME    OF    ITS    RELATIONS    TO 
ETHICS   AND    POLITICAL    ECONOMY 
SOUTHERN    BRANCH 

RSITY  of  CALIFORNIA 
LIBRARY 

LOS    ANGELES.  CALIF. 

BY 

GEORGE    HAVEN    PUTNAM 


AN    ADDRESS    DELIVERED    JANUARY    29TH,     1878,    BEFORE 
THE    NEW   YORK    FREE-TRADE    <.  LUB 


NEW    YORK 

G .    P  .     PUTNAM'S    SONS 

182    Fifth    Avenue 

1879. 

3  Lr7«3<? 


Copyright,  1S79,  by  G.  P.  Pi'tnam's  Sons. 


r~ 


ss-%. 
^ 


INTERNATIONAL    COPYRIGHT.* 


The  questions  relating  to  copyright  belong  naturally 
to  the  sphere  of  political  economy.  They  have  to  do  with 
the  laws  governing  production,  and  with  the  principles 
regulating  supply  and  demand  ;  and  they  are  directly  de- 
pendent upon  a  due  determining  of  the  proper  functions 
of  legislation,  and  of  the  relations  which  legislation,  hav- 
ing for  its  end  the  welfare  of  the  community  as  a  whole, 
ought  to  bear  towards  production  and  trade. 

As  students  of  economic  science,  we  recognize  the 
fact  that,  in  all  its  phases,  it  is  in  reality  based  upon  two 
or  three  very  simple  propositions,  such  as  : 

Two  plus  two  make  four. 

Two  from  one  you  can't. 

That  which  a  man  has  created  by  his  own  labor  is  hi^ 
own,  to  do  what  he  will  with,  subject  only  to  his  propor- 
tionate contribution  to  the  cost  of  carrying  on  the  organ- 
ization of  the  community  under  the  protection  of  which 
his  labor  has  been  accomplished,  and  to  the  single  lim- 

*  A  paper  read  January  29th,  1S78,  before  the  New  York  Free-Trade 
Club. 


2  INTERNATIONAL  COPYRIGHT. 

itation  that  the  results  of  his  labor  shall  not  be  used  to 
the  detriment  of  his  fellow-men. 

It  is  not  in  the  power  of  legislators  to  make  or  to 
modify  the  laws  of  trade  ;  it  is  their  business  to  act 
in  accordance  with  these  laws. 

Economic  science  is,  then,  but  the  systematizing,  on 
the  basis  of  a  few  generally  accepted  principles,  of  the 
relations  of  men  as  regards  their  labor  and  the  results 
of  their  labor,  namely,  their  property.  There  is  there- 
fore an  essential  connection  between  the  systems  govern- 
ing all  these  relations,  however  varied  they  may  be. 
Soundness  of  thought  in  regard  to  one  group  of  them 
leads  to  soundness  of  thought  about  the  others. 

Interested  as  we  are  in  the  work  of  bringing  the 
community  to  a  sound  and  logical  standard  of  economic 
faith  and  practice,  it  is  important  for  us  to  recognize  and 
to  emphasize  the  essential  relations  connecting  as  well 
the  different  scientific  positions  as  the  various  sets  of 
fallacious  assumptions.  Further,  we  can  hardly  lay  too 
much  stress  upon  the  oft-repeated  dictum  that  a  system 
may  be  correct  in  theory  yet  pernicious  in  practice, 
maintaining,  as  we  do,  that  where  the  application  of  a 
theory  brings  failure  the  result  is  due  either  to  the 
unsoundness  of  the  theory  or  to  some  blundering  in  its 
application. 

We  claim,  also,  that  with  reference  to  the  rights  of 
labor,  property,  and  capital,  the  free-trader  is  the  true 
protectionist.     It  is  the  free-trader  who  demands  for  the 


INTERNATIONAL  COPYRIGHT.  3 

laborer  the  fullest,  freest  use  of  the  results  of  his  labor, 
and  for  the  capitalist  the  widest  scope  in  the  employ- 
ment of  his  capital  ;  and  it  is  he  who  asserts  that  the 
paternal  authority  which  restricts  the  workingman  in  the 
free  exchange  of  the  products  of  his  craft,  which  limits 
the  directions  and  the  methods  for  the  use  of  capital, 
appropriates — or,  to  speak  more  strictly,  destroys — a 
portion  of  the  value  of  the  labor  and  the  capital,  and 
prevents  the  ownership  from  being  real  or  complete. 

Authors  are  laborers,  and  their  works  are,  as  fully  as 
is  the  case  with  any  other  class  of  laborers,  the  results  of 
their  own  productive  faculties  and  energies. 

Literary  laborers  lay  claim,  therefore,  to  the  same 
protection  for  a  full  and  free  enjoyment  of  the  results  ol 
their  labors  as  is  demanded  by  those  who  work  with 
their  hands  and  who  are  in  the  strict  sense  of  the  term 
manufacturers.  Such  enjoyment  would  include  the  right 
to  sell  their  productions  in  the  open  market  where  they 
pleased  and  how  they  pleased,  and  if  this  right  to  a  free 
exchange  is  restricted  within  political  boundarii  s,  is 
hampered  by  artificial  obstacles,  the  author  i>  not  the 
full  owner  of  his  material ;  a  portion  of  its  value  has  been 
taken  away  from  him.  In  so  far  as  international  copy- 
rights have  not  been  established,  this  is  the  position  ol 
the  author  of  to-day. 

Copyright  is  defined  by  Drone  in  his  "  Law  of  Copy- 
right," as  "  the  exclusive  right  of  the  owner  to  multiply 
and  to  dispose  of  copies  of  an   intellectual   production.*' 


4  INTERNATIONAL  COPYRIGHT. 

It  is  also  used  as  a  synonym  for  literary  property.     Re- 
garding  literary  property,  Drone  says  : 

"  There  can  be  no  property  in  a  production  of  the  mind 
unless  it  is  expressed  in  a  definite  form  of  words.  But  the 
property  is  not  in  the  words  alone;  it  is  in  the  intellectual 
creation,  which  language  is  merely  a  means  of  expressing  and 
communicating." 

Copyright  may  therefore  be  said  to  be  the  legal 
recognition  of  brain-work  as  property. 

It  is  akin  in  its  nature  to  patent-right,  which  is  also 
but  the  legal  recognition  of  the  existence  of  property  in 
an  idea,  or  a  group  of  ideas,  or  the  form  of  expression  of 
an  idea. 

International  patoit-v\g\\\.s  have  been  recognized  and 
carried  into  effect  much  more  generally  than  have  copy- 
rights. The  patentee  of  an  improved  toothpick  would 
be  able  to  secure  to-day  a  wider  recognition  of  his  right 
as  a  creator  than  is  accorded  to  the  author  of  "  Uncle 
Tom's  Cabin  "  or  of  "  Adam  Bede." 

"  The  existence  of  literary  property,"  says  Drone,  "  is 
traced  back  by  record  to  1558,  when  an  entry  of  copies 
appears  in  the  register  of  the  Company  of  Stationers  of 
London."  Between  1558  and  17 10  there  was  no  legisla- 
tion creating  this  property  or  confining  ownership,  nor 
any  abridging  its  perpetuity  or  restricting  its  enjoyment. 
It  was  understood,  therefore,  to  owe  its  existence  to 
common  law,  and  this  conclusion,  arrived  at  by  the 
weightiest  authorities,  remained  practically  unquestioned 


INTERNATIONAL  COPYRIGHT.  5 

until  1774.  During  this  earlier  period  there  were  some 
instances  of  the  recognition  of  literary  property,  but  the 
earliest  reported  case  concerning  such  property  occurred 
in  1666,  in  which  the  House  of  Lords  unanimously 
agreed  that  "a  copyright  was  a  thing  acknowledged  at 
common  law."  A  licensing  act,  passed  in  Parliament  in 
1674,  and  expiring  in  1679,  prohibited,  under  pain  of  for- 
feiture, the  printing  of  any  work  without  the  consent  of 
the  owner.  But  the  first  act  attempting  to  fully  define 
and  protect  copyright  in  Great  Britain  was  that  of  1710, 
known  as  the  8th  of  Anne.  It  was  entitled  "An  Act 
for  the  Encouragement  of  Learning,"  and,  declaring  that 
an  author  should  have  the  sole  right  of  publishing  his 
book,  prescribed  penalties  against  any  who  should  in- 
fringe that  right.  Its  evident  intention  was  to  more 
clearly  establish,  and  make  more  easily  defensible,  the 
rights  of  authors,  but  curiously  enough  it  had  for  its 
effect  a  very  material  limitation  of  those  rights. 

It  provided,  namely,  that  copyright  should  be  secured 
to  the  author  or  his  assigns  for  fourteen  years,  with  a 
privilege  of  renewal  to  the  author  or  his  representatives 
for  fourteen  years  longer.  This  privilege  of  renewal  was 
not  conveyed  to  any  one  who  might  have  purchased  the 
author's  copyright.  It  was  supposed  for  a  long  time- 
that  this  statute  had  not  interfered  with  any  rights  that 
authors  might  possess  at  common  law,  and  in  the 
cited  case  of  Millar  vs.  Taylor  in  1769,  in  regard  to  a 
reprint    of  Thomson's    "Seasons,*'    a    majority    of    the 


6  INTERNATIONAL  COPYRIGHT. 

judges  of  the  King's  Bench  (including  among  them 
Lord  Mansfield)  gave  it  as  their  opinion  that  the  act  was 
not  intended  to  destroy,  and  had  not  destroyed,  copy- 
right at  common  law,  but  had  simply  protected  it  more 
efficiently  during  the  periods  specified.  The  opinion  de- 
livered by  Lord  Mansfield,  as  chief  justice  of  the  court, 
remains  one  of  the  strongest  and  most  conclusive  state- 
ments of  the  property-rights  of  authors,  and  has  been 
termed  one  of  the  grandest  judgments  in  English  judicial 
literature.     Its  conclusion  is  as  follows  : 

"  Upon  the  whole,  I  conclude  that  upon  every  principle 
of  reason,  natural  justice,  morality,  and  common  law  ;  upon 
the  evidence  of  the  long  received  opinion  of  this  property 
appearing  in  ancient  proceedings  and  in  law  cases  ;  upon  the 
clear  sense  of  the  legislature,  and  the  opinions  of  the  greatest 
lawyers  of  their  time  since  that  statute — the  right  (that  is  in 
perpetuity)  of  an  author  to  the  copy  of  his  work  appears  to  be 
well  founded,  .  .  .  and  I  hope  the  learned  and  industrious 
will  be  permitted  from  henceforth  not  only  to  reap  the  same, 
but  the  full  profits  of  their  ingenious  labors,  without  inter- 
ruptions, to  the  honor  and  advantage  of  themselves  and  their 
families." 

In  1774,  in  the  case  of  Donaldson  vs.  Beckett,  the 
House  of  Lords  decided  on  an  appeal,  first,  that  authors 
had  possessed  at  common  law  the  right  of  copyright  in 
perpetuity,  but,  secondly,  that  this  right  at  common  law 
had  been  taken  away  by  the  statute  of  Anne,  and  a  term 
of  years  substituted  for  perpetuity. 

Chief  among  those  who,  in  opposition  to  this  decis- 


IN  TERXA  TIOXA  I,   COP  )  RIG  11 T.  7 

ion,  advised  the  lords  that  literary  property  was  not  less 
inviolable  than  any  species  of  property  known  to  the  law 
of  England,  was  Sir  William  Blackstone.  The  most  im- 
portant influence  in  support  of  the  decision  was  exercised 
by  the  arguments  of  Justice  Yates  and  Lord  Camden. 
"This  judgment,"  says  Drone,  "has  continued  to  repre- 
sent the  law  ;  but  its  soundness  has  been  questioned 
by  very  high  authorities."  In  1851  Lord  Campbell 
expressed  his  agreement  with  the  views  of  Lord  Mans- 
field. In  1854,  Justice  Coleridge  said  :  "  If  there  was 
one  subject  more  than  another  upon  which  the  great  and 
varied  learning  of  Lord  Mansfield,  his  special  familiarity 
with  it,  and  the  philosophical  turn  of  his  intellect,  could 
give  his  judgment  peculiar  weight,  it  was  this.  I  require 
no  higher  authority  for  a  position  which  seems  to  me  in 
itself  reasonable  and  just." 

In  1841  an  important  debate  took  place  in  Parliament 
upon  this  same  issue.  The  right  at  common  law  of  own- 
ership in  perpetuity  was  asserted  by  Sergeant  Talfourd 
and  Lord  Mahon,  and  the  opinion  that  copyright  was 
the  creation  of  statute  law  and  should  be  limited  to  a 
term  of  years  was  defended  by  Maeaulay. 

The  conclusions   of  the   latter  were   accepted   by   the 
House,  and  the  act  of  1S42,  which   is  still   in   force,  was 
the  result.     By  this  act  the  term  of  copyright  was  fi 
at  forty-two  years,  or  if  at  the  end  of  that  time  the  author 
be  still  living,  for  the  duration  of  his  life, 

I   have   referred   to   these  discussions  as  to  the  nature 


8  IN  TERN  A  TIONA  L  COP  J  'RICH  T. 

of  the  authority  through  which  the  author's  ownership 
exists  or  is  created,  as  the  question  will  be  found  to  have 
an  important  bearing  upon  international  copyright.  In 
connection  with  this  debate  of  1842  was  framed  the 
famous  petition  of  Thomas  Hood,  which,  if  it  were  not 
presented  to  Parliament,  certainly  deserved  to  be.  It 
makes  a  fair  presentment  of  the  author's  case,  and  is 
worth  quoting : 

"  That  your  petitioner  is  the  proprietor  of  certain  copy- 
rights which  the  law  treats  as  copyhold,  but  which  in  justice 
and  equity,  should  be  his  freeholds.  He  cannot  conceive  how 
1  Hood's  Own,'  without  a  change  in  the  title-deeds  as  well  as 
the  title,  can  become  'Everybody's  Own  '  hereafter. 

"  That  your  petitioner  may  burn  or  publish  his  manuscripts 
at  his  own  option,  and  enjoys  a  right  in  and  control  over  his 
own  productions  which  no  press,  now  or  hereafter,  can  justly 
press  out  of  him. 

"  That  as  a  landed  proprietor  does  not  lose  his  right  to  his 
estate  in  perpetuity  by  throwing  open  his  grounds  for  the 
convenience  and  gratification  of  the  public,  neither  ought  the 
property  of  an  author  in  his  works  to  be  taken  from  him, 
unless  all  parks  become  commons. 

"  That  your  petitioner,  having  sundry  snug  little  estates  in 
view,  would  not  object,  after  a  term,  to  contribute  his  private 
share  to  a  general  scramble,  provided  the  landed  and  moneyed 
interests,  as  well  as  the  literary  interest,  were  thrown  into  the 
heap;  but  that  in  the  mean  time,  the  fruits  of  his  brain  ought 
no  more  to  be  cast  amongst  the  public  than  a  Christian  wo- 
man's apples  or  a  Jewess*  oranges. 

"  That  cheap  bread  is  as  desirable  and  necessary  as  cheap 
books  ;  but  it  hath  not  yet  been  thought  just  or  expedient  to 


INTERNATIONAL  COPYRIGHT.  9 

ordain  that,  after  a  certain  number  of  crops,  all  corn-fields 
shall  become  public  property. 

"That,  whereas  in  other  cases  long  possession  is  held  to 
affirm  a  right  to  property,  it  is  inconsistent  and  unjust  that  a 
mere  lapse  of  twenty-eight  or  any  other  term  of  years  should 
deprive  an  author  at  once  of  principal  and  interest  in  his  own 
literary  fund.  To  be  robbed  by  Time  is  a  sorry  encour. 
ment  to  write  for  Futurity  ! 

"That  a  work  which  endures  for  many  years  must  be  of  a 
sterling  character,  and  ought  to  become  national  property; 
but  at  the  expense  of  the  public,  or  at  any  expense  save  that 
of  the  author  or  his  descendants.  It  must  be  an  ungrateful 
generation  that,  in  its  love  of  '  cheap  copies,'  can  lose  all 
regard  for  'the  dear  originals.' 

"That,  whereas,  your  petitioner  has  sold  sundry  of  his 
copyrights  to  certain  publishers  for  a  sum  of  money,  he  does 
not  see  how  the  public,  which  is  only  a  larger  firm,  can  justly 
acquire  even  a  share  in  copyright,  except  by  similar  means — 
namely,  by  purchase  or  assignment.  That  the  public  having 
constituted  itself  by  law  the  executor  and  legatee  of  the  au- 
thor, ought  in  justice,  and  according  to  practice  in  other 
cases,  to  take  to  his  debts  as  well  as  his  literary  assets. 

"That  when  your  petitioner  shall  be  dead  and  buried,  he 
might  with   as   much  propriety  and  decency  have  his  1 
snatched  as  his  literary  remains. 

"That,  by  the  present  law,   the  wisest,  virtuousest,   dis- 
creetest,  best  of  authors,  is  tardily  rewarded,  prei  isel) 
vicious,  seditious,  or  blasphemous  writer  is   summarily    pun- 
ished— namely,  by  the  forfeiture  of  his  copyright. 

"That,  in  case  of  infringement  on  his  copyright,  your 
petitioner  cannot  conscientiously  or  comfortably  apply  for 
redress  to  the  law  whilst  it  sanctions  universal  pira.  y  here- 
after. 

"That  your  petitioner  hath   two  children,  who  look  uv  t0 


I O  INTERN.  I  TIONA  L  COP  Y RIG II T. 

him,  not  only  as  the  author  of  the  '  Comic  Annual,'  but  as  the 
author  of  their  being.  That  the  effect  of  the  law  as  regards 
an  author  is  virtually  to  disinherit  his  next  of  kin,  and  cut 
him  off  with  a  book  instead  of  a  shilling. 

"  That  your  petitioner  is  very  willing  to  write  for  posterity 
on  the  lowest  terms,  and  would  not  object  to  the  long  credit ; 
but  that,  when  his  heir  shall  apply  for  payment  to  posterity, 
he  will  be  referred  back  to  antiquity. 

"  That,  as  a  man's  hairs  belong  to  his  head,  so  his  head 
should  belong  to  his  heirs ;  whereas,  on  the  contrary,  your 
petitioner  hath  ascertained,  by  a  nice  calculation,  that  one  of 
his  principal  copyrights  will  expire  on  the  same  day  that  his 
only  son  should  come  of  age.  The  very  law  of  nature  protests 
against  an  unnatural  law  which  compels  an  author  to  write 
for  anybody's  posterity  except  his  own. 

"  Finally,  whereas  it  has  been  urged,  '  if  an  author  writes 
for  posterity,  let  him  look  to  posterity  for  his  reward,'  your 
petitioner  adopts  that  very  argument,  and  on  its  very  principle 
prays  for  the  adoption  of  the  bill  introduced  by  Mr.  Sergeant 
Talfourd,  seeing  that  by  the  present  arrangement  posterity  is 
bound  to  pay  everybody  or  anybody  but  the  true  creditor." 

In  France  perpetual  copyright  was  guaranteed  from 
very  carl}-  times.  The  Ordinances  of  Moulines  of  1556, 
the  Declaration  of  Charles  IX.  in  1 571 ,  and  the  letters- 
patent  of  Henry  III.  constituted  the  ancient  legislation 
on  the  subject,  but  the  sovereign  had  a  right  to  refuse 
the  guarantee  whenever  he  thought  desirable.  In  176 1 
the  Council  of  State  continued  to  a  grandson  of  La 
Fontaine  the  privilege  that  his  grandfather  possessed,  on 
condition,  however,  that  he  should  not  assign  it  to  a 
bookseller.     The    Revolution  of  1789   modified  this    re- 


INTERNATIONAL  COPYRIGHT  II 

gime,  and  now  copyright  is  guaranteed  to  authors  and 
their  widows  during  their  lives,  to  their  children,  for 
twenty  years  ;  and  if  they  leave  no  children,  to  their  heirs 
for  ten  years  only.  According  to  French  law,  a  French 
subject  does  not  injure  his  copyright  by  publishing  his 
work  first  in  a  foreign  country.  No  matter  where  the 
publication  takes  place,  copyright  forthwith  accrues  in 
France  on  his  behalf,  and  on  the  necessary  deposit  being 
effected,  its  infringement  may  be  proceeded  against  in  a 
French  court.  Moreover,  a  foreigner  publishing  in 
France  will  enjoy  the  same  copyright  as  a  native,  and 
this  whether  he  has  previously  published  in  his  own  or  in 
any  other  country  or  not.  In  German}-  and  in  Austria 
copyright  continues  for  the  author's  life  and  for  thirty 
years  after  his  death.  The  longest  term  of  copyright  is 
conceded  in  Italy,  where  it  endures  for  the  life  of  the 
author  and  forty  years,  with  a  second  term  of  forty  years, 
during  which  last  any  one  can  publish  the  work  upon 
paying  the  royalty  to  the  author  or  his  assigns.  The 
shortest  term  of  copyright  exists  in  Greece,  where  it 
endures  for  but  fifteen  years  from  publication. 

In  the  United  States,  by  the  law  of  1S31,  the  term  is 
for  twenty-eight  years,  with  the  right  of  renewal  to  the 
author,  his  wife  or  his  children,  for  fourteen  years  further. 
The  renewal  must  be  recorded  within  six  months  before 
the  expiration  of  the  first  term  of  twenty-eight  ye 

Drone   says  : 

"  In  the  United  States  the  authorities  have  been  divided 


12  IX TEA' NATIONAL  COPYRIGHT. 

not  less  than  in  England  regarding  the  origin  and  nature  of 
literary  property.  Indeed,  the  doctrines  there  prevalent  have 
ruled  our  courts.  In  1834,  in  the  case  of  Wheaton  vs.  Peters, 
the  same  question  came  before  the  Supreme  Court,  that  had 
been  decided  by  the  Court  of  King's  Bench  in  1769,  and  by 
the  House  of  Lords  in  1774 — namely,  whether  copyright 
in  a  published  work  existed  by  common  law ;  and  if  so, 
whether  it  had  been  taken  away  by  statute. 

"  The  court  held  that  the  law  had  been  settled  in  England 
to  the  effect  that  the  author  had  no  right  in  a  published  work 
excepting  that  secured  by  statute ;  that  there  was  no  common 
law  of  the  United  States,  and  that  the  common  law  as  to 
copyright  had  not  been  adopted  in  Pennsylvania,  in  which 
State  the  cause  of  this  action  arose ;  and  that  by  the  copy- 
right statute  of  1790,  Congress  did  not  affirm  an  existing  right, 
but  created  one.  The  opinion,  which  was  delivered  by 
Justice  McLean,  was  concurred  in  by  three  of  the  judges,  and 
dissented  from  by  two,  Justices  Thompson  and  Baldwin,  who 
defended  the  positions  and  recalled  the  arguments  of  Lord 
Mansfield  and  Sir  William  Blackstone.  Justice  Baldwin 
said  :  '  Protection  is  the  avowed  and  real  purpose  of  the  act 
of  1790.  There  is  nothing  here  admitting  the  construction 
that  a  new  right  is  created.  .  .  .  It  is  a  forced  and  un- 
reasonable interpretation  to  consider  it  as  restricting  or  abol- 
ishing any  pre  existing  right  !  '  " 

Previous  to  the  act  of  Congress  of  1790,  acts  securing 
copyright  to  authors  for  limited  terms  had  been  passed 
in  Connecticut  and  Massachusetts  in  1783,  in  Virginia  in 
1785.  in  New  York  in  1786,  and  in  other  States  at  later 
dates.  The  statute  of  1790  gave  copyright  for  fourteen 
years,  with  a  renewal  to  the  author,  if  living,  of  fourteen 
years   further.     In    I  S3 1    was   passed  the  act  of  already 


INTERXAT10XAL  COPYRIGHT.  I  3 

quoted,  and  in  1870  the  regulation  went  into  effect  that 
a  printed  title  of  the  work  copyrighted  must  be  filed 
with  the  Librarian  of  Congress  before  publication,  and 
two  copies  of  the  complete  book  be  delivered  within  ten 
days  after  publication. 

In  1874  it  was  provided  that  the  form  of  the  copy- 
right notice  in  books  should  read,  "Copyright,  iS — ,  by 
A.  B." 

The  first  step  towards  a  recognition  of  the  rights 
of  foreign  authors  was  taken  in  1836  by  Prussia,  when 
she  prohibited  the  sale  within  her  boundaries  of  any 
pirated  or  counterfeited  editions  of  German  works. 

In    1837  a  Copyright  Convention  was  concluded  be- 
tween the  different  members  of  the  German  Confedera- 
tion.    In   1S38  the  British  Parliament  passed  a  law    to 
obtain   for   authors  the  benefits   of   international    copy- 
right, and  in    1846   England   entered   into   a   convention 
with  Prussia,  in   1851   with  France  and  Hanover,  in  1854 
with  Belgium,  and  between  1854  and  i860  with  Holland, 
Italy,  Switzerland,  and  Spain.     Between    1846  ami    I 
similar  conventions   were   entered   into  by  France  with 
Belgium,  Germany,  Holland,  Switzerland,  and  Italy,  and 
nearly  all  the  Continental  powers  have   now   copyright 
arrangements    with  each  other.     As  far  as   I   have   I 
able  to  learn,  it  is  not  requisite  under  these  arrangem 
to  have  a  book  separately  entered  for  copyright  in  each 
country.     The  single  entry   in  the  place  of  first  pal. 
tion  is  sufficient  to  protect  the  author,  and  to  leave  him 


14  INTERNATIONAL  COPYRIGHT. 

free  to  make,  within  a  specified  time,  his  own  arrange- 
ments with  foreign  publishers. 

In  the  general  copyright  statutes,  Parliament  made 
no  express  distinction  between  native  and  foreign  au- 
thors. The  copyright  was  granted  "  to  authors,"  with- 
out any  restriction  as  to  nationality.  It  has  been  con- 
tended, therefore,  by  jurists  on  the  one  hand  that  the 
privilege  must  be  presumed  to  have  been  intended  for 
British  subjects  exclusively,  and  on  the  other  that  it 
of  necessity  belonged  to  all  authors,  whether  native  or 
foreign. 

There  were,  previous  to  1854,  several  conflicting  de- 
cisions of  the  courts  on  this  question.  In  that  year  the 
House  of  Lords  decided,  in  the  case  of  Jeffreys  v.  Boosey, 
that  a  foreign  author,  resident  abroad,  was  not  entitled 
to  English  copyright. 

In  1868  the  House  of  Lords,  in  the  case  of  Routledge 
V.  Low,  with  reference  to  the  rights  of  an  American 
author  who  was  residing  in  Canada  at  the  time  of  the 
publication  of  his  book  in  London,  declared  that  an  alien 
became  entitled  to  English  copyright  by  first  publishing 
in  the  United  Kingdom,  provided  he  were,  at  the  time 
of  publication,  anywhere  within  the  British  dominions. 
Drone  says  that  "this  judgment  has  continued  to  repre- 
sent the  law." 

It  is  certainly  the  case  that  for  a  few  years  after 
1S6S,  as  a  consequence  of  this  decision,  several  Ameri- 
can authors  whose  books  were  being  published  in  Lon- 


INTERNATIONAL  COPYRIG  I  5 

don,  took  up  a  temporary  residence   in   Canada,   which 
enabled   their   London    publishers  to  enter  the  b 
copyright,  and  to  pay  the  authors  an  honorarium. 

I  am  not  able  to  quote  any  decisions  that  have 
aside  or  modified  the  above,  but  I  have  been  advised  bv 
Leading  London  publishers  that  the  effect  of  this  judg- 
ment has  in  some  way  been  nullified,  and  that  "  Canada 
copyrights  "  can  no  longer  be  depended  upon  for  pro- 
tecting American  authors  in  England. 

In  the  United  States  copyright  can  at  present  be 
secured  only  by  a  citizen  or  permanent  resident,  and 
there  is  no  regulation  to  prevent  the  use,  without  remun- 
eration, of  the  literary  property  of  foreign  authors.  The 
United  States  is  therefore  at  present  the  only  country 
itself  possessing  a  literature  of  importance,  and  making  a 
large  use  of  the  literature  of  the  world,  which  has  done 
nothing  to  recognize  and  protect  by  law  the  rights 
of  foreign  authors  of  whose  property  it  is  enjoying  the 
benefit,  or  to  obtain  a  simil.tr  recognition  and  protection 
for  its  own  authors  abroad. 

It  has  looked  after  the  rights  of  the  makers  of  it- 
sewing-machines,  its  telephones,  and  its  mouse-traps, 
but  it  appears  to  have  entirely  forgotten  the  makers  of 
its  literature.  The  position  taken  by  our  government 
in  securing  for  an  American  author  the  benefit  of  the 
sale  of  his  works  at  home,  while  practically 
him  from  obtaining  any  advantage  from  their  sales 
abroad,  is  somewhat  analogous  to  its  treatment  of  Amer- 


1 6  IN  TERN  A  TIONA  L  COP  )  -RICH  T. 

ican  ship-owners,  who  are  allowed  to  pick  up  all  the 
freights  that  offer  inland  and  along  the  coast,  but  are 
forbidden  to  earn  a  single  penny  on  the  high  seas. 

It  is  not  easy  to  understand  the  cause  of  this  contin- 
ued indifference  to  the  claims  of  our  literary  workmen  ; 
lhe\r  do  not  come  into  competition  with  the  Delaware 
River  or  with  any  manufacturing  interests  for  subsidies  ; 
the}-  ask  simply  for  markets. 

It  is  true  that  there  have  been  in  the  history  of  our 
country  governments  which  seemed  impatient  of  the 
claims  of  any  "literary  fellers;"  but  the  majority  of  our 
administrations  have  shown  a  fair  respect  for  such 
"  fellers,*'  and  even  a  readiness  to  make  use  of  their 
services. 

The  difficulty  has  really  been,  however,  not  with  the 
administrations,  but  with  the  people  at  large,  who  have 
failed  to  fairly  educate  themselves  on  the  subject,  or  to 
recognize  that  an  international  copyright  was  called  for 
not  merely  on  principles  of  general  equity,  but  as  a  mat- 
;'  simple  justice  to  American  authors. 

"These  have  suffered,  and  are  suffering  from  the  pres- 
ent state  of  things  in  two  ways.  In  the  first  place,  they 
the  royalty  on  the  sales  of  their  books  in  Europe, 
ul.i,  Australia,  etc.,  that  ought  to  be  secured  to 
them  by  treaties  of  copyright  reciprocity.  These  sales 
have  become,  with  the  growth  of  American  literature, 
very  considerable,  and  are  each  year  increasing  in  im- 
portance.    Even  a  quarter  of  a  century  ago  there  were 


IN  TERNA  TIONAL   COP  YRIGH  7*.  1 7 

enough  American  books  whose  fame  was  world-wide  to 
have  rendered  a  very  moderate  royalty  on  their  sal 
"  matter  of  great  importance  to  their  authors  and  to  the 
community.  "  Uncle  Tom's  Cabin,"  Irving's  "  Sketch- 
Book"  and  other  volumes,  Thompson's  "  Land  and  the 
Book,"  Warner's  "  Wide,  Wide  World,"  Webster's  Dic- 
tionary, James'  "  Two  Years  before  the  Mast,'1  and 
Peter  Parley's  histories  are  a  few  random  specimens 
from  the  earlier  list,  which  is  a  great  deal  longer  than 
might  at  first  be  thought. 

In   an    official    report    of   the   25th    Congress   it    was 
stated   that   up    to    1S38    not   less   than    600    American 
works  had   been   reprinted   in    England.       Accordin 
the  "  American   Facts"  of  G.  P.   Putnam.  582  American 
books,  acknowledged  to  be  such,  were  reprinted  in  Great 
Britain  between  1833  and  1843,  while  a  large  amount  of 
American    literary    material     had     been     "adapted,''    or 
issued  under  new  titles  as  if  they  had  been  original  Brit- 
ish works.       Among  these  last  he  q  ry's 
"  Law    of  Bailments,"     Everett's    "  Greek     Gramm 
Bancroft's  Translation  of  Heeren's   Histories,  Dr.  11  ai 
"Natural  History."  etc..  etc. 

Secondly,  the  want  of  an  int  al  copyright  has 

placed   American   authors  at   a  -e  it 

has  checked  the  sales  of  their  wares  at  home.  Other 
things  being  equal,  the  publisher  will,  like  any  other 
trader,  manufacture  such  goods  as  will  give  him  the 
largest  profit,  and  as  he  can   sell  the  most  re.. 


1 8  INTERNATIONAL  COPYRIGHT. 

If  he  has  before  him  an  American  novel  on  which,  if 
he  prints  it,  he  must  pay  the  author  a  royalty,  and  an  Eng- 
lish novel  of  apparently  equal  merit,  on  which  he  is  not 
called  upon  by  law  to  pay  anything,  the  commercial  in- 
ducement is  on  the  side  of  the  latter.  If,  on  the  score 
of  patriotism  or  for  some  other  reason,  he  may  decide  in 
favor  of  the  former,  his  neighbor  or  rival  will  take  the 
English  work,  and  will  have  advantages  for  underselling 
him.  As  a  matter  of  fact,  as  I  shall  specify  further  on, 
it  is  the  custom  of  the  leading  publishing  houses  to 
make  some  payment  for  the  English  material  that  they 
reprint,  but  as  they  secure  no  legal  title  to  such  mate- 
rial, they  cannot,  as  a  rule,  pay  as  much  for  it  as  they 
would  for  similar  American  work.  There  is  also  the  ad- 
wantage  connected  with  English  works  that  fhey  usually 
come  to  the  American  publisher  in  type,  in  convenient 
form  for  a  rapid  examination,  and  that  he  can  often  ob- 
tain some  English  opinions  about  them  which  help  him 
to  make  up  his  own  publishing  judgment,  and  are  of  very 
material  assistarice  in  securing  for  the  books  the  favor- 
able attention  of  the  American  public.  It  has  therefore 
been  the  case  that  an  American  work  of  fiction  has  had 
to  be  a  good  deal  better  than  a  similar  English  work, 
and  more  marked  in  its  attractiveness  in  order  to  have 
anything  like  the  same  chance  of  success.  And  what  is 
the  case  with  fiction,  is  true,  though  to  a  less  degree,  with 
books  for  young  folks  and  works  in  other  departments 
of  literature.     It   is  to  be   said,  however,  that  this  differ- 


IN  TERN  A  TJONAL  COP  YRIGH  T.  1 9 

ence  in  favor  of  English  productions  has  been  very  much 
greater  in  past  years  than  at  present,  and  is,  I  think, 
steadily  decreasing. 

American  writers  have,  against  all  disadvantages, 
forced  their  books  to  the  favorable  attention,  not  only 
of  the  American  but  of  the  foreign  public,  and  the  best 
work  is  now  fairly  secure  of  a  hearing.  But  there  is  no 
question  but  what  the  want  of  a  copyright  measure  has, 
as  above  explained,  operated  during  the  past  three  quar- 
ters of  a  century  to  retard  and  discourage  the  growth  of 
American  literature,  especially  of  American  fiction,  and  to 
prevent  American  authors  from  receiving  a  fair  return  for 
their  labor.  An  international  copyright  is  the  first  step 
towards  that  long-waited- for  "great  American  novel." 

In  1876  a  Commission  was  appointed  by  the  Govern- 
ment of  Great  Britain  "  to  make  inquiry  in  regard  to  the 
laws  and    regulations    relating    to    home,  colonial,   and 
international    copyright."     The    Commission   was  m 
fairly  representative  of  the  different   interests  to  be  < 
sidered,  comprising  among  authors  :  Earl  Stanhope,  Louis 
Mallet,  Fitzjames    Stephen,   Edward    Jenkins,    William 
Smith,  Sir  Henry  Holland,  James  Anthony  Froude, 
Anthony  Trollope,  and    also  Sir  Julius   Benedict  for  the 
composers,  Sir  Charles  Young   for    the    dramatists,   Sir 
John  Rose  and  Mr.  Fairer  for  colonial  interests,  and  Mr. 
F.  R.   Daldy  for    the    publishers  ;  and     it   ha 
work  in  the  thorough,  painstaking  way  which  is  charac- 
teristic of  the  methods  of   British   legislate 


20  INTERNATIONAL  COPYRIGHT. 

It  has  collected  during  the  past  two  years  a  vast  mass 
of  testimony  from  various  sources,  and  after  full  consid- 
eration has  arrived  at  a  series  of  recommendations  which 
it  has  presented  to    Parliament,  and    which    will  in  all 

bability  be  adopted. 

It  is  recommended  that  the  copyright  on  books, 
instead  of  holding  for  forty-two  years  from  date  of  re- 
gistration, shall  endure  for  the  lifetime  of  the  author 
and  for  thirty  years  thereafter.  This  is  the  arrangement 
at  present  existing  in  Germany,  and  it  has  the  important 
advantage  that  under  it  ail  the  copyrights  of  an  author 
will  expire  at  the  same  date. 

The  Commission  further  recommends  (and  this  is  the 
recommendation  most  important  for  our  subject)  that  the 
right  of  copyright  throughout  the  British  dominions 
be  extended  to  any  author,  wherever  resident  and  of 
whatever  nationality,  whose  work  may  first  be  published 
within  the  British  Empire. 

With  reference  to  the  present  relations  of  British 
authors  with  this  country,  it  uses  the  following  words  : 
•"  It  has  been  suggested  to  us  that  this  country  would  be 
justified  in  taking  steps  of  a  retaliatory  character,  with  a 
view  of  enforcing,  incidentally,  that  protection  from  the 
United  States  which  we  accord  to  them.  This  might  be 
done  by  withdrawing  from  the  Americans  the  privilege 
of  copyright  on  first  publication  in  this  country.  We 
have,  however,  come  to  the  conclusion  that,  on  the 
highest  public  grounds  of  policy  and  expediency,  it  is 


IN  TERNA  TIONAL  COP  YR1GII T.  2  I 

advisable  that  our  law  should  be  based  on  correct  prin- 
ciples, irrespectively  of  the  opinions  or  the  policy  of 
other  nations.  We  admit  the  propriety  of  protecting 
copyright,  and  it  appears  to  us  that  the  principle  of 
copyright,  if  admitted,  is  of  universal  application.  W 
therefore  recommend  that  this  country  should  pursue  the 
policy  of  recognizing  the  author's  rights,  irrespective  of 
nationality." 

Here  is  a  claim  for  a  far-seeing,  statesmanlike  policy. 
based  upon  principles  of  wide  equity,  and  planned  for 
the  permanent  advantage  of  literature  in  England  and 
throughout  the  world.  Contrast  with  this  the  narrow 
and  local  views  of  the  following  resolutions  adopted  at 
a  meeting  held  in  Philadelphia  in  January,  [872,  with 
reference  to  international  copyright,  at  which,  if  1 
remember  rightly,  Mr.  Henry  Carey  Baird  presided  : 

"I.  That  thought,  unless  expressed,  is  the  property 
of  the  thinker"  (a  pretty  safe  proposition,  as,  until 
expressed,  it  could  hardly  incur  any  serious  risk  of  being 
appropriated);  "when  given  to  the  world,  it  is  as  light, 
free  to  all. 

"  II.  As  property  it  can  only  demand  tl 
of  the  municipal  law  of  the  country  to  which  the  thinker 
is  subject." 

The  property  which  would,  if  it  still  existed,  most 
nearly  approximate  to  such  a  definition  as  this  is  that 
in  slaves.  Twenty  years  ago,  an  African  chattel  who 
was  worth  $1000  in  Charleston  b  n  slippin 


22  INTERNATIONAL  COPYRIGHT. 

to  the  Bermudas,  as  a  piece  of  property  valueless.     He 
had  no  longer  a  market  price. 

It  is  this  ephemeral  kind  of  ownership,  limited  by 
accidental  political  boundaries,  that  our  Philadelphia 
friends  are  willing  to  concede  to  the  work  of  a  man's 
mind,  the  productions  into  which  have  been  absorbed 
the  grey  matter  of  his  brain  and  perhaps  the  best  part 
of  his  life. 

"III.  The  author  of  any  country,  by  becoming  a 
citizen  of  this,  and  assuming  and  performing  the  duties 
thereof,  can  have  the  same  protection  that  an  American 
author  has." 

We  have  already  shown  what  an  exceedingly  unpro- 
tective  and  unremunerative  arrangement  it  is  that  is 
accorded  to  the  American  author,  and  we  have  yet  to 
find  a  single  one,  except  perhaps  Mr.  Care}-,  who  is 
satisfied  with  it. 

Why  a  European  author,  who  has  before  him,  under 
international  conventions,  the  markets  of  his  native 
country  and  of  all  the  world,  excepting  belated  America, 
should  be  expected  to  give  up  these  for  the  poor  half- 
loaf  of  protection  accorded  to  his  American  brother  we 
can  hardly  understand. 

"IV.  The  trading  of  privileges  to  foreign  authors 
for  privileges  to  be  granted  to  Americans  is  not  just, 
because    the    interests    of  others    than    themselves    are 

ificed  thereby.*' 

That  strikes  one  as  a  remarkable  sentence  to  come 


IN  TERNA  TIONAL  COP  YRhUl  /'. 


-J 


from  Philadelphia.  Here  arc  a  number  of  American 
manufacturers  who  ask  for  a  certain  very  moderate 
amount  of  protection  for  their  productions,  and  our 
Philadelphia  friends,  filled  with  an  unwonted  zeal  for  the 
welfare  of  the  community  at  large,  say.  "  No  ;  this  w 
do.  Prices  would  be  higher,  and  consumers  would 
suffer." 

It  is  evident  that  this  want  of  practical  sympathy 
with  these  literal'}-  manufacturers  is  not  due  to  any  lack 
of  interest  in  the  enlightenment  of  the  community,  for 
the  last  article  says  : 

"  V.   Because  the  good  of  the  whole  people  and  the 
safety  of  our  republican  institutions  demand  that  b< 
shall  not  be  made  too  costly  for  the  multitude  by  giving 
the  power  to  foreign   authors  to  fix  their  price    her 
well  as  abroad." 

I   think  we   may  well  doubt  whether  education 
whole,   including    the    important    branch    of   ethics,   is 
advanced    by    permitting    our    citizens  to    appropri 
without  compensation,  the  labor  of  others,  while  through 
such -appropriation  they  are  also  assisting  to  deprive 
own   authors    of   a  portion   of   their    rightful    earnii 
But  apart  from  that,  the  proposition,   as  stated,    pr< 
too  much.     It  is  fatal  to  all  copyright  and  to  all  patent- 
right.     If  the  good  of  the  community  and  the  - 
our  institutions  demand  that,   in   order  to   mak 
cheap,  the  claim  to  a  compensation  for  the  authors  must 
be  denied,  why  should  we  continue  to  pay  copyi 


24  INTERNATIONAL  COPYRIGHT. 

Longfellow  and  Whittier,  or  to  the  families  of  Irving  and 
Bryant  ?  The  so-called  owners  of  these  copyrights  actu- 
ally have  it  in  their  power,  in  connection  with  their  pub- 
lishers, to  "  fix  the  prices"  of  their  books  in  this  market. 
This  monopoly  must  indeed  be  pernicious  and  danger- 
ous when  it  arouses  Pennsylvania  to  come  to  the  rescue 
of  oppressed  and  impoverished  consumers  against  the 
exactions  of  greedy  producers,  and  to  raise  the  cry  of 
■"  free  books  for  free  men.'' 

There  is  certainly  something  refreshing  in  this  zeal 
for  the  rights  of  the  consumer,  though  we  may  doubt 
the  equity  of  its  application  in  this  particular  instance;- 
but  we  can  nevertheless  hardly  be  satisfied  to  have  an 
utterance  like  that  of  these  resolutions  quoted  (as  it  is  in 
the  last  edition  of  the  Encyclopaedia  Britannica)  as  "  the 
latest  American  views  on  the  subject." 

The  history  of  the  efforts  made  in  this  country  to 
secure  international  copyright  is  not  a  long  one.  The 
attempts  have  been  few,  and  have  been  lacking  in  organi- 
zation and  in  unanimity  of  opinion,  and  they  have  for  the 
most  part  been  made  with  but  little  apparent  expecta- 
tion of  any  immediate  success.  Those  interested  seem 
to  have  always  felt  that  popular  opinion  was,  on  the 
whole,  against  them,  and  that  progress  could  be  hoped 
for  only  through  the  slow  process  of  building  up  by 
■education  and  discussion  a  more  enlightened  public 
sentiment. 

In    1838.  after  the   passing   of  the  first   International 


f.Y  TERN  A  TIONAL   COP  V  RIGHT. 


O 


Copyright  Act  in  Great  Britain,  Lord  Palmerston  invited 
the  American  Government  to  cooperate  in  establishing 
a  copyright  convention  between  the  two  countries. 

In  the  year    previous,  Henry   Clay,  as   chairman   of 
a  committee  on  the  subject,  had  reported  to  the  : 
very  strongly  in  favor  of  such  a  convention,  taking  the 
ground  that  the  author's  right  of  property   in   his  v. 
was  similar  to  that  of  the  inventor  in  his  patent. 

This  is  a  logical  position  for  a  protectionist,  ii 
in  the  rights  of  labor,  to  have  taken,  and  the  foil  »wers 
of  Henry  Clay,  who  are  to-day  opposed  to  any  measure 
of  the  kind,  would  do  well  to  bear  in  mind  this  opinion 
of  their  ablest  leader. 

No  action  was  taken   in  regard  to   Mr.  Clay's  r 
or  Lord  Palmerston's  proposal. 

In  1840  Mr.  G.  P.  Putnam  issued  in  pamphlet  form 
"  An  Argument  in  behalf  of  Internationa]  Copyright," 
the  first  publication  on  the  subject  in  the  Unite.: 
of  which  I  find  record.  In  [843  Mr.  Putnam  obtained 
the  signatures  of  ninety-seven  publishers,  printers,  and 
binders  to  a  petition  he  had  prepared,  and  which  was 
duly  presented  to  Co  .It  took  the  br  und 

that    the    absence    of    an     international    copyright    \ 
"alike  injurious   to   the   business  of  publishing  and   to 
the  best  interests  of  the  people  at  la: 

A   memorial    was    presented    the  same  year    in   1 
sition  to  this  petition,  setting  forth,  among  other  thil 
that   an    international    copyright    would   "  prevent    the 


20  INTERNATIONAL  COPYRIGHT. 

adaptation  of  English  books  to  American  wants."  In 
the  report  made  by  Mr.  Baldwin  to  Congress  twenty- 
five  years  later,  he  remarks  that  "  the  mutilation  and 
reconstruction  of  American  books  to  suit  English  wants 
are  common  to  a  shameless  extent." 

In  1853  the  question  of  a  copyright  convention  with 
Great  Britain  was  again  under  discussion,  the  measure 
being  favored  by  Mr.  Everett,  at  that  time  Secretary 
of  State.  Five  of  the  leading  publishing  houses  in  New 
York  addressed  a  letter  to  Mr.  Everett  in  which,  while 
favoring  a  convention,  they  advised — 

1st.  That  the  foreign  author  must  be  required  to 
register  the  title  of  his  work  in  the  United  States  before 
its  publication  abroad. 

2d.  That  the  work,  to  secure  protection,  must  be 
issued  in  the  United  States  within  thirty  days  of  its  pub- 
lication abroad ;  and 

3d.  That  the  reprint  must  be  wholly  manufactured  in 
the  United  States. 

Shortly  afterwards  Mr.  Carey  published  his  "  Letters 
on  International  Copyright,"  in  which  he  took  the 
ground  that  the  facts  and  ideas  in  a  book  are  the  com- 
mon property  of  society,  and  that  property  in  copyright 
is  indefensible.  In  185S  a  bill  was  introduced  into  the 
House  of  Representatives  by  Mr.  Morris,  of  Pennsyl- 
vania, providing  for  international  copyright  on  the  basis 
of  an  entire  remanufacture  of  the  foreign  work  and  its 
reissue   by  an    American    publisher  within    thirty    days 


INTERNATIONAL  COPYRIGHT. 

of  the  publication  abroad.     The  bill  docs  not  appear  to 
have  received  any  consideration. 

In  March,  1868,  a  circular  letter  headed  "Justice 
to  Authors  and  Artists,"  was  issued  by  a  Committee 
composed  of  G.  P.  Putnam,  Dr.  S.  I.  Prime.  Henry 
Ivison,  James  Parton,  and  Egbert  Hazard,  calling  to- 
gether a  meeting  for  the  consideration  of  the  subject 
of  international  copyright.  The  meeting  was  held  on 
the  9th  of  April,  Mr.  Bryant  presiding,  ami  a  society 
was  organized  under  the  title  of  the  "Copyright  Asso- 
ciation for  the  Protection  and  Advancement  of  Litera- 
ture and  Art,"  of  which  Mr.  Bryant  was  made  president 
and  E.  C.  Stedman  secretary.  The  primary  object  of 
the  Association  was  stated  to  be  "  to  promote  the  enact- 
ment of  a  just  and  suitable  international  copyright  law 
for  the  benefit  of  authors  and  artists  in  all  parts  of  the 
world." 

A  memorial  had  been  prepared  by  the  above-men- 
tioned Committee  to  be  presented  to  Congress,  which 
requested  Congress  to  give  its  earl}-  attention  to  the 
passage  of  a  bill  "to  secure  in  all  parts  of  the  world 
the  rights  of  authors,"  etc.,  but  which  made  no  recom- 
mendations as  to  the  details  of  any  measure.  '  M  the 
153  signatures  attached  to  this  memorial,  101  were  t'. 
of  authors,  and   19  of  publishers. 

In  the  fall  of  1868   Mr.  J.  D.  Baldwin,  member  of 

Congress  from  Worcester,  Mass.,  reported  a  bill  that  had 
been   prepared    with   the   co-operation   of  the    Executive 


28  INTERNATIONAL  COPYRIGHT. 

Committee  of  the  Copyright  Association,  which  pro- 
vided, That  a  foreign  work  could  secure  a  copyright 
in  this  country  provided  it  was  wholly  manufactured 
here  and  should  be  issued  for  sale  by  a  publisher  who 
was  an  American  citizen.  The  benefit  of  the  copyright 
was  also  limited  to  the  author  and  his  assigns. 

The  bill  was  recommitted  to  the  Joint  Committee  on 
the  Library,  and  no  action  was  taken  upon  it.  The 
members  of  this  Committee  were  Senators  E.  D.  Mor- 
gan, of  New  York,  Howe,  of  Wisconsin,  and  Fessenden, 
of  Maine,  who  were  opposed  to  the  measure,  and  Repre- 
sentatives Baldwin,  of  Massachusetts,  Pruyn,  of  New 
York,  and  Spalding,  of  Ohio,  who  were  in  favor  of  it. 
The  bill  was  also  to  have  been  supported  in  the  House 
by  Michael  C.  Kerr,  of  Indiana.  Mr.  Baldwin  explains 
that  an  important  cause  for  the  shelving  of  the  measure 
without  debate  was  the  impeachment  of  President  John- 
son, which  was  at  that  time  absorbing  the  attention 
of  Congress  and  the  country.  No  general  expression  of 
opinion  was  therefore  elicited  upon  the  question  from 
either  Congress  or  the  people,  and  in  fact  the  question 
has  never  reached  such  a  stage  as  to  enable  such  an  ex- 
ion  of  public  opinion  to  be  arrived  at. 

It  is  my  own  belief  that  if  the  issue  were  fairly  pre- 
sented to  them,  the  American  people  could  be  trusted 
to  decide  it  honestly  and  wisely. 

The  active  members  of  the  committee  of  the  Copy- 
right Association,  under  whose  general  suggestions  this 


INTERNATIONAL  COPYRIGHT.  29 

bill  of  Mr.  Baldwin's  had  been  framed,  were  Dr.  S.  Iren- 
ctus  Prime,  George  P.  Putnam,  and  James  Parton.       1  ».. 
Prime  published  in  Putnam  s  Magazine   in  May,  iS- 
paper    on    the  "  Right   of  Copyright,"    which    remains 
perhaps  the  most  concise  and  comprehensive  statement 
of  the  principles  governing  the  question,  and  which 
forth    very    clearly    the   necessary    connection    between 
Carey's  denial   of  the  right    of  property  in    books  and 
Proudhon's  claim  that  all  property  is  robber}-.     In  1 
Mr.  Cox  of   New    York    introduced    a    bill    which   \ 
practically  identical  with    Mr.    Baldwin's    measure,  and 
which  was  also  recommitted  to  the  Library  Commit: 
In    1S72  the  new  Library    Committee  called  upon   the 
publishers  and  others  interested  to  aid  in  framing  a  bill, 
A  meeting  of  the  publishers  was  called  in  New  York, 
which  was  attended  by    but    one  firm    outside 
York  ;  the  majority  of  the  firms  present  were  in  favor  of 
the  provisions    of  Mr.  Cox's    bill,  already  referred 
The  report  was  dissented  from  by  a  large  minority  on 
the  ground    that  the    bill    was  in  the    inter 
publishers    rather    than    that    of    the    public;    that    tin- 
prohibition  of  the  use  of  foreign  sti 

types  of  illustrations  was  an  economic  absurdity  :  and 
that  an   English    publishing   house  could  in   any   < 
through   an   American    partner,   retain    con!         of   the 
American  market.      The  report  o\   the  minority  was  pre- 
pared by  Mr.  Edward  Seymour,  of  Scribn  r, 
&  Co.      During  the  same  week  a  bill   was  drafted  by  Mr. 


30  INTERNATIONAL  COPYRIGHT. 

C.  A.  Bristed,  representing  more  especially  the  views  of 
the  authors  in  the  International  Copyright  Association, 
which  provided  simply  that  "  all  rights  of  property 
secured  to  citizens  of  the  United  States  by  existing  copy- 
right laws  are  hereby  secured  to  the  citizens  and  subjects 
of  every  country  the  government  of  which  secures  recip- 
rocal rights  to  the  citizens  of  the  United  States."  The 
same  result  as  that  aimed  at  in  Mr.  Bristed's  bill  would 
have  been  obtained  by  the  adoption  of  the  recommenda- 
tion made  by  Mr.  J.  A.  Morgan  in  his  work  on  "  The 
Law  of  Literature,"  published  in  1876.  He  suggested 
that  the  present  copyright  law  be  amended  by  simply 
inserting  the  word  "  person  "  in  place  of  "  citizen,"  in 
which  case  its  privileges  would  at  once  be  secured  to  any 
authors,  of  whatever  nationality,  who  complied  with  its 
requirements. 

A  few  weeks  later  the  meeting  was  held  in  Phila- 
delphia whose  resolutions  in  opposition  to  international 
copyright  (which,  as  we  have  shown,  were  equally  for- 
cible against  any  copyright)  we  have  already  quoted. 

These  four  reports  were  submitted  to  the  Library 
Committee  of  Congress,  together  with  one  or  two  indi- 
vidual measures,  of'which  the  most  noteworthy  were 
those  of  Harper  &  Bros.,  and  of  John  P.  Morton,  book- 
seller, of  Louisville. 

Messrs.  Harper,  in  a  letter  presented  by  their  coun- 
sel, objected  to  any  measure  of  international  copyright 
on  the  broad  ground  that  it  would  "  add  to   the  price  of 


IN  TERN  A  TIONA  L  COP  i  'RICH  T.  3  I 

books  and  interfere  with  the  education  of  the  peoj 
This  consideration  is  of  course  open  to  the  same  criti- 
cism as  the  Philadelphia  platform  ;  it  is  equally  forcible 
against  any  copyright  whatever.  As  Thomas  Hood 
says,  "  cheap  bread  xs  as  desirable  and  necessary  as  ch 
books,"  but  one  does  not  on  that  ground  appropriate  the 
farmer's  wheat-stacks ! 

Mr.  Morton  was  in  favor  of  an  arrangement  that 
should  give  to  any  dealer  the  privilege  of  reprintij 
foreign  work,  provided  he  would  contract  to  pay  to  the 
author  or  his  representative  io  per  cent  of  the  wl 
price  of  such  work.  He  advised  also  that  the  American 
market  should  be  left  open  to  the  foreign  edition,  so 
that  the  competition  should  be  perfectly  unrestricl 

The  proposition  that  all  dealers  who  would  contract 
to  pay    to    the  author  a  royalty  (to   be  fixed   by  1 
should  beat   liberty  to  undertake   the   publication    of  a 
work  was  at  a  later  date  presented  to   the    British  Com- 
mission by  Mr.  Farrer  and  Sir  Henry  Holland,  first  with 
reference  to  home   copyright,  and  secondly  as  a 
tion  for  an  international  arrangement.     In  this  last  sh 
the  writer  had  the  opportunity,  in  1876,  of  presenter 
the  Commission  some  considerations  against  it.        1 
will  be  referred  to  further  on. 

A  similar  suggestion  formed   the  basis  of  a  measure 
submitted  in  1S72  by  Mr.  Elderkin,  of  X  t he- 

Library  Committee  of  C  .   and  known  afterwai 

as  the  Sherman   Bill. 


3  2  IN  TERN  A  TIONA  L  COP  Y RIG  II  T. 

In  view  of  the  wide  diversity  of  the  plans  and  sug- 
gestions presented  to  this  Committee,  there  was  certainly 
some  ground  for  the  statement  made  in  his  report  by  the 
chairman,  Senator  Lot  M.  Morrill,  of  Maine,  that  "there 
was  no  unanimity  of  opinion  among  those  interested  in 
the  measure."  He  maintained,  further,  that  an  inter- 
national copyright  was  not  called  for  by  reasons  of 
general  equity  or  of  constitutional  law  ;  that  the  adop- 
tion of  any  plan  which  had  been  proposed  would  be  of 
very  doubtful  advantage  to  American  authors,  and 
would  not  only  be  an  unquestionable  and  permanent 
injury  to  the  interests  engaged  in  the  manufacture  of 
books,  but  a  hindrance  to  the  diffusion  of  knowledge 
among  the  people,  and  to  the  cause  of  American  edu- 
cation. 

This  report  closed  for  the  time  the  consideration  of 
the  subject. 

The  efforts  in  behalf  of  international  copyright  have 
been  always  more  or  less  hampered  by  the  question 
being  confused  with  that  of  a  protective  tariff. 

The  strongest  opposition  to  a  copyright  measure  has 
as  a  rule  come  from  the  protectionists.  Richard  Grant 
White  said  in  1S6S:  "The  refusal  of  copyright  in  the 
United  States  to  British  authors  is  in  fact,  though  it 
is  not  so  avowed,  a  part  of  the  'American'  protective 
system."  And  again  :  "  With  free  trade  we  shall  have 
just  international  copyright." 

It  would  be  difficult,  however,  for  the  protectionists 


INTERNATIONAL  COPYRIGHT.  33 

to  show  logical  grounds  for  their  position.  .American 
authors  are  manufacturers,  who  are  simply  asking,  fi 
that  they  shall  not  be  undersold  in  their  home  market 
by  goods  imported  from  abroad  on  which  no  (ownership) 
duty  has  been  paid, — which  have,  namely,  been  sin 
"appropriated;"  and  secondly,  that  the  government 
may  facilitate  their  efforts  to  secure  a  sale  for  their 
own  goods  in  foreign  markets.  These  are  claims  with 
which  a  protectionist  who  is  interested  in  developing 
American  industry  ought  certainly  to  be  in  sympathy. 

The  contingency  that  troubles  him,  however,  is  the 
possibility  that,  if  the  English  author  is  given  the  right 
to  sell  his  books  in  this  country  the  copies  sold  may 
be  to  a  greater  or  less  extent  manufactured  in  England, 
and  the  business  of  making  these  copi  -  may 
to  American  printers,  binders,  and  paper  men.  He  is 
namely,   much   more  concerned     for    th  of 

the  makers  of  the   material  casing  of  the  book  than  for 
that  of  the  author  who  creates  its  essential  substai 

It  is  evidently  to  the  advantage   of  the   consumer, 
upon  whose  interests  the  Philadelphia  resolutions  lai 
much  stress,   that    the   labor   of  preparing   the   editi 
of  his  books  be  economized  as  much  as  possi 

The  principal  portion  of  th  if  a  firsl 

of  a  book  is  the  setting  of  the  type,  or,  if  I 
illustrated,  in  the  setting  of  the  type  and  ti.  ning 

and  engraving  of  the  illustrations. 

If  this  first  cost  of  stereotyping  and  engraving  can  be 
2* 


34  INTERNATIONAL  COPYRIGHT. 

divided  among  several  editions,  say  one  for  Great  Britain, 
one  for  the  United  States,  and  one  for  Canada  and  the 
other  colonies,  it  is  evident  that  the  proportion  to  be 
charged  to  each  copy  printed  is  less,  and  that  the  selling 
price  per  copy  can  be  smaller,  than  would  be  the  case  if 
this  first  cost  has  got  to  be  repeated  in  full  for  each 
market. 

It  is  then  to  the  advantage  of  the  consumer  that, 
whatever  copyright  arrangement  be  made,  nothing  shall 
stand  in  the  way  of  foreign  stereotypes  and  illustrations 
being  duplicated  for  use  here  whenever  the  foreign  edi- 
tion is  in  such  shape  as  to  render  this  duplicating  an 
advantage  and  a  saving  in  cost. 

The  few  protectionists  who  have  expressed  them 
selves  in  favor  of  an  international  copyright  measure, 
and  some  others  who  have  fears  as  to  our  publishing 
interests  being  able  to  hold  their  own  against  any  open 
competition,  insist  upon  the  condition  that  foreign  works 
to  obtain  copyright  must  be  wholly  remanufactured  and 
republished  in  this  country. 

We  have  shown  how  such  a  condition  would,  in  the 
majority  of  cases,  be  contrary  to  the  interests  of  the 
American  consumer,  while  the  British  author  is  naturally 
opposed  to  it  because,  in  increasing  materially  the  outlay 
to  be  incurred  by  the  American  publisher  in  the  produc- 
tion of  his  edition,  it  proportionately  diminishes  the 
profits  or  prospects  of  profits  from  which  is  calculated 
the  remuneration  that  can  be  paid  to  the  author. 


IN  TERN  A  7 1  OX  A  L    COP  )  'R1GH  T.  3  5 

The  measure  of  permitting  the  foreign  book  to  be 
reprinted  by  all  dealers  who  would  contract  to  pay  the 
author  a  specified  royalty  has  at  first  sight  something 
specious  and  plausible  about  it.  It  seems  to  be  in 
harmony  with  the  principles  of  freedom  of  trade,  in 
which  we  are  believers.  It  is,  however,  directly  opposed 
to  those  principles ;  first,  it  impairs  the  freedom  of 
contract,  preventing  the  producer  from  making  such 
arrangements  for  supplying  the  public  as  seem  best  to 
him;  and  secondly,  it  undertakes,  by  paternal  lee, 
tion,  to  fix  the  remuneration  that  shall  be  given  to  the 
producer  for  his  work,  and  to  limit  the  prices  at  which 
this  work  shall  be  furnished  to  the  consumer.  There  is 
no  more  equity  in  the  government's  undertaking  this 
limitation  of  the  producer  and  protection  of  the  i 
sumer  in  the  case  of  books  than  there  would  be  in  that  of 
bread  or  of  beef. 

Further,  such  an  arrangement  would  be  oi  benefit 
to  neither  the  author,  the  public,  nor  the  publishers,  and 
would,  we  believe,  make  of  international  copyright,  and 
of  any  copyright,  a  confusing  and  futile  absurdity. 

A  British  author  could  hardly  obtain  much  satisfac- 
tion from  an  arrangement  which,  while  preventing  him 
from  having  his  American  business  in  the  hands  "t  a 
publishing  house  selected  by  himself,  and  of  wh 
responsibility  he  could  assure  himself,  threw  open  the 
use  of  his  property  to  any  dealers  who  might  ch( 
to  scramble  for  it.      He   could  exercise   no  control   over 


V  INTERNATIONAL    COPYRIGHT. 

the  style,  the  shape,  or  the  accuracy  of  his  American 
editions  ;  could  have  no  trustworthy  information  as  to 
the  number'  of  copies  the  various  editions  contained  ; 
and  if  he  were  tenacious  as  to  the  collection  of  the  roy- 
alties to  which  he  was  entitled,  he  would  be  able  in  many 
cases  to  enforce  his  claims  only  through  innumerable 
lawsuits,  and  he  would  find  the  expenses  of  the  collection 
exceed  the  receipts. 

The  benefit  to  the  public  would  be  no  more  apparent. 
Any  gain  in  the  cheapness  of  the  editions  produced 
would  be  more  than  offset  by  their  unsatisfactoriness  : 
they  would,  in  the  majority  of  cases,  be  untrustworthy 
as  to  accuracy  or  completeness,  and  be  hastily  and  flirri- 
sily  manufactured.  A  great  many  enterprises,  also,  de- 
sirable in  themselves,  and  that  would  be  of  service  to 
the  public,  no  publisher  could,  under  such  an  arrange- 
ment, afford  to  undertake  at  all,  as,  if  they  proved  suc- 
cessful, unscrupulous  neighbors  would,  through  rival 
editions,  reap  the  benefit  of  his  judgment  and  his  adver- 
tising. In  fact,  the  business  of  reprinting  would  fall 
largely  into  the  hands  of  irresponsible  parties,  from 
whom  no  copyright  could  be  collected. 

The  arguments  against  a  measure  of  this  kind  are,  in 
short,  the  arguments  in  favor  of  international  copyright. 
A  very  conclusive  statement  of  the  case  against  the 
equity  or  desirability  from  any  point  of  view  of  such  an 
arrangement  in  regard  to  home  copyright  was  made  be- 
fore the  British  Commission,  in  1S77,  by  Herbert  Spen- 


IN  TERNA  TIONA  L    COP  )  'RICH  T. 

cer.     Histestimony  is  given  in  full  in  the  Popular  Sci 
Monthly  for  November,  1878,  and  February,  1 

The  recommendation  had  been  made  that,  for  the 
sake  of  securing  cheap  books  for  the  people,  the  law- 
should  give  to  all  dealers  the  privilege  of  printing  an 
author's  books,  and  should  fix  a  copyright  to  be  paid  to 
the  author  that  should  secure  him  a  "  lair  profit  for  his 
work."     Mr.  Spencer  objected  that — 

First.  This  would  be  a  direct  interference  with  the 
laws  of  trade,  under  which  the  author  had  the  right  t" 
make  his  own  bargains.  Second.  No  legislature  was 
competent  to  determine  what  was  "  a  (air  rate  of  profit" 
for  an  author.  Third.  No  average  royalty  could  be  deter- 
mined which  could  give  a  fair  recompense  for  the  dii 
cut  amounts  and  kinds  of  labor  given  to  the  production 
of  different  classes  of  books.  Fourth.  If  the  legislature 
has  the  right  to  fix  the  profits  of  the  author,  it  has  an 
equal  right  to  determine  that  of  his  associate  in  the  pub- 
lication, the  publisher;  and  if  of  the  publisher,  then 
of  the  printer,  binder,  and  paper-maker,  who  all  have  m\ 
interest  in  the  undertaking.  Such  a  right  of  control 
would  apply  with  equal  force  to  manufacturers  of  other 
articles  of  importance  to  the  community,  and  would  not 
be  in  accordance  with  the  pre  enl  theories  of  the  pr< 
functions  of  government.      Fifth.   If  bi  to    be 

cheapened  by  such  a  measure,  it  must  be  at  the  1 
of  some  portion  of  the  profits  now  going  to  the  auth 
and  publishers;   the   assumption    is   that  book   pp 


3  S  IN  TERN  A  TJONA  L    COP  Y RIG  II T. 

and  distributors  do  not  understand  their  business,  but 
require  to  be  instructed  by  the  state  how  to  carry  it  on, 
and  that  the  publishing  business  alone  needs  to  have  its 
returns  regulated  by  law.  Sixth.  The  prices  of  the  best 
books  would  in  many  cases,  instead  of  being  lessened,  be 
higher  than  at  present,  because  the  publishers  would 
require  some  insurance  against  the  risk  of  rival  editions, 
and  because  they  would  make  their  first  editions  smaller, 
and  the  first  cost  would  have  to  be  divided  among  a  less 
number  of  copies.  Such  reductions  of  prices  as  would 
be  made  would  be  on  the  flimsier  and  more  popular  liter- 
ature, and  even  on  this  could  not  be  lasting.  Seventh. 
For  the  enterprises  of  the  most  lasting  importance  to  the 
public,  requiring  considerable  investment  of  time  and 
capital,  the  publishers  require  to  be  assured  of  returns 
from  the  largest  market  possible,  and  without  such 
security  enterprises  of  this  character  could  not  be  under- 
taken at  all.  Eighth.  Open  competition  of  this  kind 
would,  in  the  end,  result  in  crushing  out  the  smaller  pub- 
lishers, and  in  concentrating  the  business  in  the  hands 
ct  a  few  houses  whose  purses  had  been  long  enough  to 
carry  them  through  the  long  and  unprofitable  contests 
that  would  certainly  be  the  first  effect  of  such  legislation. 
All  the  considerations  adduced  by  Mr.  Spencer  have, 
of  course,  equal  force  with  reference  to  open  interna- 
tional publishing,  while  they  may  also  be  included 
among  the  arguments  in  behalf  of  international  copy- 
right. 


INTERNATIONAL    COPYRIGHT.  39 

With  these  views  of  a  veteran  writer  of  books  may- 
very  properly  be  associated  the  opinions  of  the  experi- 
enced publisher,  Mr.  Win.  H.  Appleton,  who,  in  a  letter 
to  the  New  York  Times  in  1872,  say.-^  : 

"  The  first  demand  of  property  is  for  security. 
To  publish  a  book  in  any  real  sense — that  is,  not  merely 
to  print  it,  but  to  make  it  well  and  widely  known — 
requires  much  effort  and  large  expenditure,  and  these 
will  not  be  invested  in  a  property  which  is  liable  to 
be  destroyed  at  any  moment.  Legal  protection  would 
thus  put  an  end  to  evil  practices,  make  property  secure, 
business  more  legitimate,  and  give  a  new  vigor  to  enter- 
prise. Nor  can  a  policy  which  is  unjust  to  the  author. 
and  works  viciously  in  the  trade,  be  the  best  for  the 
public.  The  publisher  can  neither  afford  to  make  the 
book  so  thoroughly  known,  nor  can  he  put  it  at  so  low  a 
price,  as  if  he  could  count  upon  permanent  and  undis- 
turbed possession  of  it.  Man}-  valuable  books  are  not 
reprinted  at  all,  and  therefere  are  only  to  be  had  at 
English  prices,  for  the  same  reason  that  publishers 
are  cautious  about  risking  their  capital  in  unprotected 
property." 

The  copy-book  motto,  "  Honesty  is  the  best  policy," 
fails  often  enough  to  come  true  (at  least  as  to  material 
results)  in  the  case  of  the  individual,  simply  because 
his- life  is  not  always  long  enough  to  give  an  opportunity 
for  all  the  results  of  his  actions  to  be  arrh  1  he 

community,   however,   in   its   longer  life,   is    subject 


40  INTERNATIONAL    COPYRIGHT. 

the  full  influence  of  the  certain  though  sometimes  slow- 
working  relations  of  cause  to  effect,  relations  which, 
among  other  things,  bring  out  the  essential  connec- 
tion between  economics  and  ethics,  and  which  show 
in  the  long-run  the  just  method  to  be  the  wise  method. 
An  enlightened  self-interest  finds  out  the  advantage 
of  equity.  If  the  teaching  of  history  makes  anything 
evident,  it  is  that  in  the  transactions  of  a  nation,  honesty 
pays,  even  in  the  narrowest  and  most  selfish  sense  of  the 
term,  and  nothing  but  honesty  can  ever  pay.  Among 
the  many  classes  of  interests  to  which  this  applies  inter- 
national copyright  certainly  belongs. 

Rejecting  the  Elderkin-Sherman  suggestion  of  an 
open  market  for  republishing  as  in  no  way  effecting 
the  objects  desired ;  the  Baldwin-Cox  plan  of  giving 
protection  only  to  books  of  which  the  type  had  been 
set  and  the  printing  done  in  this  country,  as  narrow  in 
principle  and  uneconomic  in  practice  ;  and  the  Bristed- 
M organ  proposition  to  extend  the  right  of  copyright 
without  limitation  or  restriction,  as  not  giving  sufficient 
consideration  to  the  business  requirements,  and  as  at 
present  impracticable  to  carry  into  effect — we  would  re- 
commend a  measure  based  upon  the  suggestion  of  the  Brit- 
ish Commission,  coupled  with  one  or  two  of  the  provisions 
that  have  been  included  in  the  several  American  schemes  : 

I.  That  the  title  of  the  foreign  work  be  registered 
in  the  United  States  simultaneously  with  its  publication 
abroad. 


INTERNATIONAL  COPYRIGHT.  4 1 

2.  That  the  work  be  republished  in  the  United  States 
within  six  months  of  its  publication  abroad. 

3.  That  for  a  limited  term,  say  ten  years,  the  stipula- 
tion should  be  made  that  the  republishing  be  done  by  an 
American  citizen. 

4.  That  for  the  same  term  of  years  the  copyright 
protection  be  given  to  those  books  only  that  have  been 
printed  and  bound  in  this  country,  the  privilege  being 
accorded  of  importing  foreign  stereotypes  and  electro- 
types of  cuts. 

5.  That,  subject  to  these  provisions,  the  foreign  author 
or  his  assigns  shall  be  accorded  the  same  privileges  now 
conceded  to  an  American  author. 

I  believe  that,  in  the  course  of  time,  the  general  laws 
of  trade  would  and  ought  to  so  regulate  the  arrange- 
ments for  supplying  the  American  public  with  books 
that,  if  there  were  no  restriction  as  to  the  nationality  of 
the  publisher  or  as  to  the  importation  of  printed  volumes, 
the  author  would  select  the  publishing  agent,  English 
or  American,  who  could  serve  him  to  best  advanta 
and  that  that  agent  would  be  found  to  be  the  man 
who  would  prepare  for  the  largest  possible  circle  ol 
American  readers  the  editions  best  suited  to  their 
wants. 

The  foreign  author  would  before  long  recognize  that 
it  was  to  his  interest  to  be  represented  by  the  publisher 
who  understood  the  market  most  thoroughly  and  who  had 
the  best  facilities  for  supplying  it.     If  English  publish 


4  2  IN  TERN  A  TIOXAL  COP  YR1GHT. 

settling  here,  could  excel  our  American  houses  in  this 
understanding  and  in  these  facilities,  they  ought  to  be  at 
liberty  to  do  so,  and  it  would  be  for  the  interest  of  the 
public  that  no  hindrances  should  be  placed  in  their  way. 

The  experience  of  our  American  houses,  however,  who 
have  had  business  with  English  authors  and  publishers  is 
that  it  takes  some  little  time  for  them  to  obtain  a  clear 
perception  of  the  requirements  of  the  American  market 
and  of  American  readers,  and  of  the  very  material  differ- 
ences existing  between  the  status  here  and  in  Great 
Britain.  And  it  would  be  my  fear  that,  if  the  copyright 
were  granted  at  once  without  restriction,  there  would  be 
an  interregnum  of  some  years,  during  which  these  au- 
thors and  publishers  were  obtaining  their  American  edu- 
cation, before  the  American  readers  could  obtain  freely 
the  books  they  wanted  in  the  editions  they  were  willing 
to  purchase. 

Our  friends  on  the  other  side  could  not  resist  the 
temptation  of  experimenting,  before  providing  what  was 
really  wanted,  as  to  how  long  our  market  would  stand 
their  expensive  $7,  $5.  and  S3  editions  of  books  that  we 
have  been  accustomed  to  buy  here  for  $2.50,  $2,  and  $1  ; 
and  as  a  consequence,  they  would  sell  books  by  dozens 
or  hundreds  that  ought  to  be  sold  by  thousands  ;  their 
authors  would  receive  an  inconsiderable  copyright,  and 
the  American  public  would  'be  badly  served  and  would 
become  indignant. 

But   if  the  channels   of  communication  between  the 


INTERNATIONAL  COPYRIGHT.  43 

English   authors  and  their  American  readers  were  once 
fairly  established,  as  they  would  be,  I   think,  under  the 
arrangements  suggested,  it  would  not,  I  believe,  be  pos- 
sible at  a  later  date  to  interfere  with  them,  even   if  all 
restrictions    were    removed.       When    American    readers 
were  buying  by  thousands  a  suitable  edition,  at  a   mo 
rate  price,  of  a  work  by  a  standard  English   author  who 
was  himself  receiving  a  good  return  from  his  enlarged 
sales,  this  author  would  be  as  little  likely,  at  the  expira- 
tion of  the  ten  years,  to  restrict  those  sales  by  insisting 
that   his  work  should  be  sold  here  in  the  costly   and  un- 
suitable English  edition,  as  to  stipulate  that  it  should  be 
sold  here  in  a  Russian  translation.       It  is  probable,  also, 
that  the  including  in  the  measure  of  these  restrictions, 
even  if  but  for  a  limited  term  of  years,  would  gain    for 
it  some  support   that  would  be  important  for  its  succ 
It  seems  probable  that,  if  the  present  conditions  of  tr 
are  maintained,  American  book-makers  need   not  be  es- 
pecially troubled  ten  years  hence  by  the  com  of 
books  manufactured  in  England,  and  that,  if  the  various 
duties  affecting  the  manufacture  could  be  abolished,  we 
could  well  spare  the  duty  on  books  themselv 

I  can,  however,  imagine  no  state  of  affairs  in  which  it 
would  be  economical  or  desirable  to  insist  upon  two 
tings  of  type  for  a  book  designed  for  different  groups  of 
English-speaking  readers;  and   the  more  generally  this 
first  and  most  important  part  of  the   cost  of  a  book 
be   economized     by     being    divided    between   the    two 


44  INTERNATIONAL  COPYRIGHT. 

markets,  the  greater  the  advantage  in  the  end  to  author, 
public,  and  publisher. 

A  proposition  will  doubtless  be  made  in  the  course 
of  a  year  by  the  British  Government  for  the  appointment 
of  an  International  Commission  for  a  fresh  consideration 
of  the  subject,  and  our  government  ought  to  prepare  for 
this  International  Commission  by  the  early  appointment 
of  a  Home  Commission  to  give  due  consideration  to  the 
several  interests  involved  in  the  question,  to  collect  again 
the  different  sets  of  opinions,  and  to  harmonize  these  as 
far  as  practicable. 

By  the  time  our  English  friends  are  ready  to  talk 
the  matter  with  us,  we  ought  to  have  informed  ourselves 
definitely  as  to  what  kind  of  a  measure  is  on  the  whole 
most  desirable,  and  how  much  of  this  it  is  at  this  present 
time  practicable  to  carry  into  effect. 

There  has  undoubtedly  during  the  past  ten  years 
been  a  growth  of  enlightened  public  sentiment  on  the 
question,  but  I  should  still  be  indisposed  to  entrust  its 
settlement  to  the  House  of  Representatives,  and  should 
suppose  that  it  could  probably  be  handled  to  best  advan- 
by  the  Senate  in  the  shape  of  a  treaty. 

It  is  due  to  American  publishers  to  explain  that,  in 
the  absence  of  an  international  copyright,  there  has 
grown  up  among  them  a  custom  of  making  payments  to 
foreign  authors  which  has  become,  especially  during  the 
last  twenty-five  years,  a  matter  of  very  considerable 
importance.     Some  of  the  English  authors  who  testified 


INTERNATIONAL  COPYRIGHT.  45 

before  the  British  Commission  stated  that  the  payments- 
from  the  United  States  for  their  books  exceeded  their 
receipts  in  Great  Britain.  These  payments  secure  of 
course  to  the  American  publisher  no  title  of  any  kind  to 
the  books.  In  some  cases  they  obtain  for  him  the  use  of 
advance  sheets  by  means  of  which  he  is  able  to  get  his 
edition  printed  a  week  or  two  in  advance  of  any  unau- 
thorized edition  that  might  be  prepared.  In  many  cases 
however,  payments  have  been  made  some  time  after  the 
publication  of  the  works,  and  when  there  was  no  longer 
even  the  slight  advantage  of  "  advance  sheets  "  to  be 
gained  from  them. 

While  the  authorization  of  the  English  author  can 
convey  no  title  or  means  of  defence  against  the  inter- 
ference of  rival  editions,  the  leading  publishing  houses 
have,  with  very  inconsiderable  exceptions,  respected 
each  others'  arrangements  with  foreign  authors,  and  the 
editions  announced  as  published  "  by  arrangement  with 
the  author,"  and  on  which  payments  in  lieu  of  copyright 
have  been  duly  made,  have  been  as  a  rule  not  interfered 
with.  This  understanding  among  the  publishers  goes  by 
the  name  of  "  the  courtesy  of  the  trade."  I  think  it 
is  safe  to  say  that  it  is  to-day  the  exception  for  an  Eng- 
lish  work  of  any  value  to  be  published  by  any  reputable 
house  without  a  fair  and  often  a  very  liberal  recognition 
being  made  of  the  rights  tin  equity)  of  the  author. 

In  view  of  the  considerable  amount  of  harsh  language 
that  has  been  expended  in  England  upon  our  American 


4')  INTERNATIONAL  COPYRIGHT. 

publishing  houses,  and  the  opinion  prevailing  in  England 
that  the  wrong  in  reprinting  is  entirely  one-sided,  it  is  in 
order  here  to  make  the  claim,  which  can,  I  believe,  be 
fully  substantiated,  that  in  respect  to  the  recognition 
of  the  rights  of  authors  unprotected  by  law,  their  record 
has  during  the  past  twenty-five  years  been  in  fact  better 
than  that  of  their  English  brethren.  They  have  become 
fully  aroused  in  England  to  the  fact  that  American  liter- 
ary material  has  value  and  availability,  and  each  year  a 
larger  amount  of  this  material  has  had  the  honor  of  be- 
ing introduced  to  the  English  public.  According  to  the 
statistics  of  1878,  ten  per  cent  of  the  works  issued 
in  England  in  that  year  were  American  reprints.  The 
acknowledgments,  however,  of  any  rights  on  the  part  of 
American  authors  have  been  few  and  far  between,  and 
the  payments  but  inconsiderable  in  amount.  The  lead- 
ing English  houses  would  doubtless  very  much  prefer  to 
follow  the  American  practice  of  paying  for  their  reprinted 
material,  but  they  have  not  succeeded  in  establishing 
any  general  understanding  similar  to  our  American 
"  courtesy  of  the  trade,"  aiad  books  that  have  been  paid 
for  by  one  house  are,  in  a  large  number  of  cases,  promptly 
reissued  in  cheaper  rival  editions  by  other  houses.  It  is 
very  evident  that,  in  the  face  of  open  and  unscrupulous 
competition,  continued  or  considerable  payments  to 
authors  are  difficult  to  provide  for  ;  and  the  more  credit 
is  due  to  those  firms  who  have,  in  the  face  of  this  diffi- 
culty, kept  a  good  record  with  their  American  authors. 


INTERNATIONAL  COPYRIGHT.  47 

One  London  publisher  in  London  made  a  custom  for 
years  of  sending  a  liberal  remittance  to  the  author  of  the 
"  Wide,  Wide  World  "  for  each  new  volume  sent  to  him. 
But  the  competition  of  the  unauthorized  editions  had 
proved  so  sharp  that  he  told  me  he  got  no  profit  from 
his  purchases,  and  did  not  see  how  he  could  continue 
them. 

The  fate  of  the  author  of"  Helen's  Babies"  was  still 
harder.  Of  his  first  book  seven  editions  were  issued  by 
different  British  houses,  aggregating  together  an  enor- 
mous sale,  from  which  he  received  hardly  a  penny.  For 
the  advance  sheets  of  the  sequel  to  this  one  firm  paid 
him  £50.  But  so  fierce  was  the  scramble  for  it  among 
the  half  dozen  or  more  publishers  who  hurried  through 
their  reprints  from  the  American  journal  in  which  it  was 
appearing  as  a  serial,  that  one  energetic  house  sent  it  out 
to  the  British  public  minus  the  concluding  chapter, 
while  another,  still  more  enterprising,  had  the  last  chap- 
ter of  his  edition  added  by  an  English  hand,  and  the 
moral  of  the  story  was  entirely  transformed. 

Of  the  books  of  Longfellow,  Lowell,  Holmes,  Mrs. 
Prentiss,  Mark  Twain,  Dr.  Mayo,  Miss  Phelps,  Miss  Al- 
cott,  Mrs.  Stowe,  Bayard  Taylor,  and  most  of  our  more 
popular  authors,  there  are,  in  like  manner,  various  rival 
editions,  and  no  one  house,  however  go. id  its  intentii 
can  afford  to  make  a  practice  of  paying  these  authors,  as 
its  neighbors  cannot  be  depended  upon  to  respect  its 
arrangements 


48  INTERNATIONAL  COPYRIGHT. 

On  the  other  hand,  the  leading  English  authors,  like 
George  Eliot,  Miss  Mulock,  William  Black,  R.  D.  Black- 
more,  Wilkie  Collins,  Thomas  Hardy,  Mrs.  Alexander, 
Tyndall,  Huxley,  and  very  many  others,  have  received 
and  are  receiving  liberal  payments  from  their  American 
publishers,  who  are  accustomed,  as  I  have  said,  not  to 
interfere  with  each  others'  purchases. 

In  past  years  there  have  been  sharp  criticisms  on  the 
other  side  of  an  American  habit  of  "  adapting"  and  re- 
shaping English  books,  so  that  the  authors,  in  addition 
to  the  grievance  of  receiving  no  compensation  for  their 
American  editions,  had  the  further  cause  for  complaint 
that  these  editions  were  not  trustworthy  and  did  not 
fairly  represent  their  productions.  It  was  also  charged 
that  English  material  was  occasionally  "  annexed  " 
bodily  by  American  authors,  without  any  credit  being 
given.  For  both  sets  of  charges  there  have  doubtless 
been  grounds,  but  the  instances  have  certainly  during 
the  past  quarter  century  grown  very  much  fewer.  In- 
deed, the  last  kind  of  appropriation  would  to-day  be 
almost  impossible,  as  the  knowledge  of  English  current 
literature  is  so  thorough  that  detection  would  follow  at 
once.  "Appropriated"  material  could  not  be  sold.  In 
England,  however,  while  American  literature  is,  as  I 
have  shown,  beginning  to  be  appreciated,  it  is  not  yet  at 
all  thoroughly  known,  and  there  is  therefore  much  less 
risk  in  making  use  of  it.  As  a  matter  of  fact  it  has  been 
so  made  use  of  by  literary  hacks  to  a  considerable  extent, 


INTERNATIONAL    COPYRIGHT.  49 

and  there  are  some  amusing  instances  in  which  the  Eng- 
lish publishers  and  English  critics  have  been  imposed 
upon  by  material  that  was  not  original.  Mr.  Randolph, 
the  publisher,  relates  how  he  was  innocently  led  to  re- 
print some  essays  brought  to  him  by  an  English  friend, 
which  seemed  to  him  very  fresh  and  original,  and  which 
proved  to  have  been  taken  bodily  from  one  of  Henry 
Ward  Beecher's  volumes.  Mr.  Randolph  promptly 
called  Mr.  Beecher's  attention  to  his  own  felonious  con- 
duct, and  handed  him  a  check  for  the  considerable 
amount  due  him  for  copyright  on  the  sales. 

A  translation  by  Charlton  T.  Lewis  of  Bengel's  "  Gno- 
mon of  the  New  Testament"  was  reprinted  in  Lon- 
don as  the  work  of  "  two  clergymen  of  the  Church  of 
England."  Mr.  Lewis'  version  was  followed  verbatim, 
with  the  single  exception  of  the  omission  of  some  Latin 
quotations. 

Dr.  S.  Irenaeus  Prime  had  sent  to  him  a  volume 
bearing  the  name  of  an  English  author,  with  the  inquiry  as 
to  whether,  in  his  judgment,  it  was  likely  to  prove  of  inter- 
est for  American  readers.  He  found  he  was  hardly  in  a 
position  to  give  an  impartial  answer  to  the  inquiry, 
the  book  was  one  of  his  own,  for  several  editions  of  which 
the  American  public  had  already  shown  a  heart}'  appre- 
ciation. 

These  are  but  incidental  examples  of  one  kind  of 
appreciation  that  has  been  accorded  to  American  literary 
work,  which  may  be  complimentary  but  can  hardly  be 


50  INTERNATIONAL  COPYRIGHT. 

called  satisfactory.  I  refer  to  them  not  because  they 
can  be  considered  as  any  legitimate  extenuation  of  simi- 
lar American  misdeeds,  for  I  do  not  admit  that  in  ques- 
tions of  equity,  the  tu  quoque  forms  any  argument  or 
defence.  They  are  worth  mentioning  only  for  the  sake 
of  emphasizing  to  our  English  friends,  what  they  have 
not  fairly  appreciated,  that  there  are  at  least  two  sides  to 
the  evil  of  the  present  state  of  things,  and  that  the  de- 
moralization produced  by  it  has  not  been  confined  to  our 
side  of  the  Atlantic.  These  instances  of  misappropria- 
tion are  not  of  course  fairly  representative  of  the  Eng- 
lish publishing  or  literary  fraternity,  any  more  than 
similar  American  instances,  which  have  formed  the  text 
of  various  English  homilies,  can  be  accepted  as  indicat- 
ing the  standard  of  literary  and  trade  morality  with  us. 
We  Americans  simply  say  for  ourselves  that  the  evils 
and  demoralizing  tendencies  of  the  lack  of  international 
agreements  are  fully  recognized  by  us,  and  that  while 
certain  conditions  of  manufacturing  have  heretofore 
formed  a  troublesome  obstacle  in  the  way  of  the  estab- 
lishing of  such  agreement,  we  are  glad  to  believe  that 
this  obstacle  is  now  in  a  fair  way  of  being  overcome. 
In  the  meantime,  we  claim  that,  in  the  absence  of  law, 
our  American  publishers,  especially  those  of  the  present 
generation,  have,  of  their  own  free  will,  given  to  English 
authors  a  large  part  of  the  advantage  that  a  law  would 
have  secured  to  them,  and  have  done  this  without  any 
corresponding  advantage  of  protection  for  themselves. 


1XTERNATI0NAL    COPYRIGHT.  5  I 

We  are  also  fully  appreciative  of  the  credit  du 
such  of  the   English  houses  as  (in  the  face  of  peri, 
greater  difficulties)  have  made  similar  efforts  to  do  justice 
to  American  authors. 

One  of  the  not  least  important  results  to  be  looked 
for  from  international  copyright  is  a  more  effective 
co-operation  in  their  work  on  the  part  of  the  pub- 
lishers of  the  two  great  English-speaking  natio 
They  will  find  their  interest  and  profit  in  working 
together,  and  the  very  great  extension  that  may  be 
expected  in  the  custom  of  a  joint  investment  in  the 
production  of  books  for  both  markets  will  bring  a  very 
material  saving  in  the  first  cost,  a  saving  in  the  advan- 
tage of  which  authors,  publishers,  and  public  will  alike 
share. 

It  seems  probable  that  the  "  courtesy   of  the  trade  " 
which  has  made  possible  the  present  relations  between 
American  publishers  and  foreign  authors   is  n 
retain  its  effectiveness.      Within  the  last  year  certain 
"libraries"   and    "series"   have    sprung    into 
which  present  in  cheaply-printed  pamphlet  form  som 
the  best  of  recent  English  fiction.     Those  who  conduct 
them  reap  the  advantage  of  the  literary  judgment  and 
foreign   connections  of  the  older  publishing  hou 
taking  possession  of  material  that  has  b 
lected  and  liberally  paid   for,   are  able  tool  the 

public  at  prices  which  are  certainly  li  »w  a  with 

those  of  bound  books  that  have  paid   copyright,  but 


INTERNA  TIONAL  COP  YRIGIIT. 

doubtless  high  enough  for  literature  that  is  so  cheaply- 
obtained  and  so  cheaply  printed. 

These  enterprises  have  been  carried  on  by  concerns 
which  have  not  heretofore  dealt  in  standard  fiction,  and 
which  are  not  prepared  to  respect  the  international  ar- 
rangements or  trade  courtesies  of  the  older  houses. 

To  one  of  the  "  cheap  series  "  the  above  remarks  do 
not  apply.  The  "  Franklin  Square  Library ''  is  pub- 
lished by  a  house  which  makes  a  practice  of  paying  for 
its  English  literary  material,  and  which  lays  great  stress 
upon  "  the  courtesy  of  the  trade."  It  is  generally  un- 
derstood by  the  trade  that  this  series  was  planned,  not 
so  much  as  a  publishing  investment,  as  for  purposes  of 
self-defence,  and  that  it  would  in  all  probability  not  be 
continued  after  the  necessity  for  self-defence  had  passed 
by.  A  good  many  of  its  numbers  include  works  for 
which  the  usual  English  payments  have  been  made,  and 
it  is  very  evident  that,  in  this  shape,  books  so  paid  for 
cannot  secure  a  remunerative  sale.  It  seems  safe  to  con- 
clude, therefore,  that  their  publication  is  not,  in  the  lit- 
eral sense  of  the  term,  a  business  investment,  and  that 
the  undertaking  is  not  planned  to  be  permanent. 

A  very  considerable  business  in  cheap  reprints  has 
also  sprung  up  in  Toronto,  from  which  point  are  circu- 
lated throughout  the  Western  States  cheap  editions  of 
English  works  for  the  "  advance  sheets  "  and  "American 
market,"  of  which  Eastern  publishers  have  paid  liberal 
prices.      Some  enterprising  Canadian  dealers  have  also 


INTERNATIONAL  COPYRIGHT.  53 

taken  advantage  of  the  present  confusion  between  the 
United  States  postal  and  customs  regulations  to  build 
up  a  trade  by  supplying  through  the  mails  reprints  of 
American  copyright  works,  in  editions  which,  being  flim- 
sily  printed,  and  free  of  charge  for  copyright,  can  be  sold 
at  very  moderate  prices  indeed. 

It  is  very  evident  that,  in  the  face  of  competition  of 
this  kind,  the  payments  by  American  publishers  to 
foreign  writers  of  fiction  must  be  materially  diminished, 
or  must  cease  altogether.  These  pamphlet  series  have, 
however,  done  a  most  important  service  in  pointing  out 
the  absurdity  of  the  present  condition  of  literary  proper- 
ty, and  in  emphasizing  the  need  of  an  international  copy- 
right law.  In  connection  with  the  change  in  the  condi- 
tions of  book-manufacturing  before  alluded  to,  they  may 
be  credited  as  having  influenced  a  material  modification 
of  opinion  on  the  part  of  publishers  who  have  in  years 
past  opposed  an  international  copyright  as  either  inex- 
pedient or  unnecessary,  but  who  are  now  quoted  as  ready 
to  give  their  support  to  any  practicable  and  equitable 
measure  that  may  be  proposed. 

I  have  endeavored  to  give  in  the  foregoing  pages  an 
outline  sketch  of  the  history  and  present  position  of  the 
question  of  international  copyright,  and  to  briefly  indi- 
cate some  of  the  relations  in  which  it  stands  to  ethics 
and  political  economy. 

We  may,  I  trust,  be  able,  at  no  very  distant  period, 
to  look  back  upon,  as  exploded  fallacies  of  an  antiquated 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
I  hifl  book  is  DUE  on  the  last  date  stamped  below. 


£     JUN1972. 

RECD  ID-URi 

OEC    7 1977/ 

OCTO 

51985 

■PttM 

MAR    41982 

recto  mm 

31984 

REC'D  LD-URC 

Form  L9— Series  444 

V 


3   1158  00218  7473 


'II  III  II 
AA    001  164  116    4 


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